Friday, December 31, 2004

As if the human rights concerns over the government's proposed asset forfeiture regime were not bad enough, there's also the fact that the government's own advisers do not think they will be effective. The February 18th briefing paper noted that asset forfeiture's impact on crime was less than clear:

The NSW Crime Commission argues that, although there is no systematic empirical evidence, there is plenty of anecdotal evidence that organised criminals are deterred from offending if the profits of that offending are removed from the offender. Police in Western Australia have made similar claims. However, others we spoke to acknowledged that, particularly in light of the fact that 95% of cases in NSW are settled (allowing the offender to return [sic] a portion of their assets), confiscation may simply be seen by many as a tax on their activity

(My emphasis).

Settlements are a key part of Labour's proposal, as they allow the government to confiscate while avoiding the costs of trial. But this simply turns things into a financial calculation: if the government goes after your house, and the cost of defending it is high enough, it makes perfect sense to simply give them your car and save everyone the trouble. For people who already have to kick up to those higher on the criminal ladder, this is simply going to look like the government getting into the same game, and government shakedowns are going to be seen as a cost of doing business.

The same briefing paper is however clear about the advantages of a civil (rather than conviction-based) forfeiture regime:

It is clear that in both NSW and WA the amount recovered by way of civil forfeiture has very substantially exceeded what was confiscated under a conviction-based regime. In this respect, it can be seen as a valuable means of revenue collection...

This rather revealing statement was subsequently culled from future documents (as were concerns about effectiveness); however the first outline paper presented to Cabinet on March 15th continued to emphasise money, noting that "civil forfeiture schemes... have generally been much more effective at taking money out of circulation" and presenting a table showing total assets recovered under various overseas regimes - all of which went to the respective governments.

In New Zealand, there are already significant concerns about the police's focus on revenue-gathering through traffic enforcement. These concerns will only grow greater with the introduction of an asset forfeiture regime. As the March 11th briefing paper pointed out, there is a danger of creating a "perverse incentive" for police to focus on asset forfeitures because they are easier (and potentially raise money) rather than actual convictions. That is a risk I do not think we should take.